Book Review: Finkin and Post’s For the Common Good: Principles of American Academic Freedom

It may be trivial to open a book review by noting that there are “great” unsettled questions of constitutional law. Resolving such questions is one of the major functions of the Supreme Court, and the endless ingenuity of disputing attorneys means that every “solved” problem can create its own successor issues. Exempli gratia, think about the marvelous simplicity of the Court’s language in Iqbal, as compared to the major hash with a side of eggs that scholars, judges, and practitioners attempting to create sensible rules to apply to workaday cases have made of that deceptively-simple language.

It may be beating my own drum a little bit,[1] but academic freedom is, at least for prawfs, one of these “great questions.” For prawfs, of course, it hits potentially close to home; academic freedom is the only thing that keeps controversial research from leading to firing or other adverse employment actions. For the rest of us, it’s merely interesting. This potentially-slender reed was seriously thinned by the Court’s 2006 Garcetti decision, 547 U.S. 410, which held that public employees, who previously had been protected from adverse actions due to their speech on “matters of public concern,” lack protection if their speech is part of their job responsibilities. Since academics are, in fact, required by their job to speak on matters of public concern in their field of expertise, the bare text of the Court’s opinion would seem to say that professors have no First Amendment protection from adverse action in the workplace. This issue was so glaringly obvious that it caused the Court to explicitly disavow any intentions of resolving the question of professorial rights, and triggered a dissent that pointed out what a truly inadequate protection academic freedom had been reduced to: a mere refusal to resolve a question clearly encompassed in the Court’s decision.

All of this is mere prologue to Matthew W. Finkin and Robert C. Post’s fascinating study of the history of American academic freedom, For the Common Good: Principles of American Academic Freedom. In one sense, it’s irrelevant prologue, since Finkin and Post disavow any interest in discussing or justifying the constitutional bases of academic freedom. In another respect, it’s crucial to understanding the importance of their project: if constitutional academic freedom is such weak tea, then it becomes all the more important to explore and define the non-constitutional mechanisms that protect controversial professors of every stripe. Whether those protections are visualized as contractarian principles or as simple community norms, they take on an enormous amount of importance if professors cannot hang their hats on a Constitutional provision for their academic freedom.

In that respect, Finkin and Post may have abandoned the idea of the Constitution as a home for academic freedom. Post-Garcetti, that’s at least a reasonable conclusion; but it’s by no means the only one. Numerous scholars continue to write and think about academic freedom issues through a Constitutional lens. See Nancy J. Whitmore, “First Amendment Showdown: Intellectual Diversity Mandates and the Academic Marketplace,” 13 Comm. L. & Pol’y 321 (2008); Frederick Schauer, “Is There a Right to Academic Freedom?,” U. Colo. L. Rev. 907 (Fall 2006); R. George Wright, “The Emergence of First Amendment Academic Freedom,” 85 Neb. L. Rev. 793 (2007); see also Julie H. Margetta, “Guarding the Ivory Tower: The Duty of the University to Defend and Indemnify Faculty Publications,” 12 Tex. J. on C.L. & C.R. 133 (Fall 2006). Setting aside normative questions of whether Finkin and Post should abandon the Constitution in this case, they did; and the result is, quite frankly, outstanding. Beginning with the prehistory of the American academy (that is, pre-American Association of University Professors) (AAUP), they trace academic freedom from its Enlightenment beginnings in the German faculty-governance model to its new home in American universities that faced the complicating issue of lay governance. Finkin and Post do an outstanding job of picking apart the primary sources of the time, including the multiple declarations by benefactors and governing bodies of the supremacy of boards. They then examine the events surrounding the formation of the AAUP and the issuance of the 1915 Declaration of Principles on Academic Freedom and Academic Tenure and the current definitive statement, the 1940 Statement of Principles on Academic Freedom and Tenure. Turning to the substantive questions of what constitutes “academic freedom,” the authors then devote a chapter to each of the four “freedoms” traditionally associated with American academic freedom: freedom of research and publication, freedom of teaching, freedom of intramural expression, and freedom of extramural expression. Cracking open the proceedings of the AAUP’s Committee A (the organization that investigates and “tries” allegations of violations of the Statement), they explore the contours of four freedoms, not in a judicial context, but in an academic one. In other words, the question the authors are answering is not “How would a court evaluate this claim?” but rather “How should the community of scholars evaluate this claim?” While their answer may be less comforting than individual academics might prefer, the balance they strike in their conclusions reflects not just their own careful scholarship, but the rapprochement of values reached by the stakeholders in American academic freedom. In short, Finkin and Post have written a book that seems to be a reflection and an affirmation of the balance struck between the academy and the administration.

In that respect, their performance is outstanding. Unfortunately, it drastically narrows the audience for their work; practitioners who might be representing professors or academics will find no guidance in this work (unless appearing before Committee A), and scholars whose interest lies in the gnomic judicial pronouncements on academic freedom will wonder why Finkin and Post bothered. But for those who have a personal stake in the issue (i.e., scholars whose activities may trigger discontent in their administrations or the wider community), the book is an important starting point in their understanding of academic freedom. While the book does not claim to be an exhaustive compendium of Committee A’s work, it does draw from that committee’s decisions a set of principles that can help to guide the behavior of both universities and professors. And for those who want to consider academic freedom as a societal norm rather than a legal doctrine, Finkin and Post’s work is absolutely invaluable. Here, in one relatively slim, eminently readable volume is a careful and nuanced examination of how the competing interests in American universities in the twentieth century strove with one another over how to express the values they held dear, composed in such a way as to guide those who would try to apply those values to new circumstances. While constitutional scholars will find slim pickings, those who see academic freedom as relational rather than doctrinal will be pleased – and find their investment greatly returned.

[1] I won’t link to it, but suffice it to say that I have a piece in submission about constitutional academic freedom.

_____________________________________________________________________

Matthew Reid Krellis Executive Director and General Counsel of Headwaters, Inc., a watershed advocacy group in Whitesburg, Kentucky.